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Articles on Wisconsin legal history

Wisconsin abolishes the death penalty

Today, Wisconsin is one of only 12 states which does not have the death penalty for murder and other serious crimes. Our dislike of the death penalty goes back a long way -- to 1853, to be exact.

Wisconsin was a fairly violent place during territorial days. Murder trials and hangings occurred regularly. But in the early 1800s a reform movement had begun in the eastern states to end hangings. Many of Wisconsin's early leaders came from the east and were influenced by the movement. They pointed out that for every juror that voted to hang a criminal, there was another who would let a guilty man go free to avoid having a second killing on his conscience.

Many Wisconsinites also argued that state-sponsored killing of criminals lowered the state to the level of those it killed. A committee of the state's first constitutional convention in 1846 explained:

It is conceived that executions have a tendency to harden those who witness and participate in them rather than a beneficial tendency to overawe the community at the spectacle, and that habitual use to such sights but tends to render a person hard and callous and properly fitted for any crime.

In 1849, the Legislature limited use of the death penalty to first degree murder. The only man put to death under the new law was John McCaffary of Kenosha, who was convicted in 1851 of murdering his wife and was hanged publicly before an audience of several thousand people. The crowd's presence turned the execution into a spectacle:

The rope was adjusted about [McCaffary's] neck, and he was told it lacked five minutes of the time, during which time the prisoner stood firm with clasped hands, but the movement of his lips showed he was in silent prayer. The cap was drawn over his face. At precisely one o'clock Sheriff Allen walked across the platform, and with a firm tread stepped upon the secret spring, and the prisoner was hoisted in the air. He continued to struggle for the space of five minutes. After he had been suspended about eight minutes, his pulse was slightly reduced, and continued to beat for about 10 minutes longer, at which time life was extinct and the prisoner was let down into the coffin.

The spectacle of McCaffary's hanging gave many Wisconsinites pause and prompted opponents of the death penalty to renew their quest to abolish it. They filed in the 1852 Legislature but the next year, led by Christopher Latham Sholes of Milwaukee in the Assembly and Marvin Bovee of Summit in the Senate, they succeeded. Efforts have periodically been made to bring back the death penalty in Wisconsin, but as of today Wisconsin has done without the death penalty longer than all but two other states (Michigan and Rhode Island).

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.